Supreme Court Justices To Decide Health Care Law's Fate

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In the third and last day that the U.S. Supreme Court considered the Obama health care law, it turned its attention from the abstract legal issues to the very practical – what if it did overturn a key part of the law. In sessions in the morning and afternoon, the justices took on two separate questions related to the federal health care overhaul.

NPR's Ari Shapiro reports.

ARI SHAPIRO, BYLINE: The morning's arguments began by assuming the worst for the Obama administration. If the court strikes down the central part of the health care law, the individual mandate requiring nearly everyone to have health insurance, then the question is whether the rest of the law has to fall too.

Lawyer Paul Clement argued yes, the whole tower collapses.

(SOUNDBITE OF SUPREME COURT HEARING)

PAUL CLEMENT: If the individual mandate is unconstitutional, then the rest of the act cannot stand.

SHAPIRO: He represents 26 states challenging the health law. He immediately came under fire from the justices who tend to lean left. Justice Sonia Sotomayor said why not let Congress figure out which remaining parts of the law should stand and fall.

(SOUNDBITE OF SUPREME COURT HEARING)

JUSTICE SONIA SOTOMAYOR: Congress could look at it without the mandatory coverage provision and say this model doesn't work; let's start from the beginning. Or it could choose to fix what it has.

SHAPIRO: Justice Ruth Bader Ginsburg said many parts of the law have nothing to do with the individual mandate. Why not leave intact the Indian Health Care Improvement Act or changes to the black-lung benefit?

(SOUNDBITE OF SUPREME COURT HEARING)

JUSTICE RUTH BADER GINSBERG: Why shouldn't we say it's a choice between a wrecking operation, which is what you are requesting, or a salvage job? And the more conservative approach would be salvage rather than throwing out everything.

SHAPIRO: Attorney Paul Clement said those provisions never would have made it into the bill if it were not for the individual mandate at its core.

(SOUNDBITE OF SUPREME COURT HEARING)

CLEMENT: You can't possibly think that Congress would have passed that hollow shell without the heart...

JUSTICE JOHN ROBERTS: No, but it would've passed parts of the hollow shell. I mean a lot of this is reauthorization of appropriations that have been reauthorized for the previous five or 10 years.

SHAPIRO: That was Chief Justice John Roberts pushing back on Clement.

When government lawyer Ed Kneedler stepped up on behalf of the Obama administration, Roberts and the other conservative justices pushed back even harder.

This is Kneedler's position...

(SOUNDBITE OF SUPREME COURT HEARING)

ED KNEEDLER: We think only a few provisions are un-severable from the minimum coverage provision.

SHAPIRO: Justice Antonin Scalia said it's crazy to ask the Supreme Court to parse this bill.

(SOUNDBITE OF SUPREME COURT HEARING)

JUSTICE ANTONIN SCALIA: You really want us to go through these 2,700 pages?

(SOUNDBITE OF LAUGHTER)

SCALIA: And do you really expect a court to do that? Or do you expect us to give this function to our law clerks? Is this not totally unrealistic?

SHAPIRO: Some of the justices expressed concern about insurance companies. Justice Samuel Alito asked how they could continue covering everyone if the court strikes down the individual mandate but upholds other parts of the law.

(SOUNDBITE OF SUPREME COURT HEARING)

JUSTICE SAMUEL ALITO: If the 350 million(ph) from the individual mandate were to be lost, what would happen to the insurance industry, which would now be in the hole for $350 billion over 10 years?

SHAPIRO: That suggests Alito sees the different parts of the law intertwined like a ball of roots.

Later, a third lawyer argued for a minimalist approach, striking down only the individual mandate and nothing else. The court appointed him to take that position, since neither the government nor the law's challengers agree with it.

In the afternoon, the judges donned their black robes again. This time the question was about Medicaid. Under the health law, states must provide services to more people. Congress provides most of the money. But if states refuse to expand the program, they lose all their federal Medicaid money.

Attorney Clement said the expansion amounts to coercion.

(SOUNDBITE OF SUPREME COURT HEARING)

CLEMENT: They're saying that if you don't take our new money subject to the new conditions, we're going to take all of the money you've previously gotten that you've been dependent on for 45 years and you're using right now to serve the visually impaired and the disabled.

SHAPIRO: If the justices strike down the Medicaid requirements, it could have implications for all kinds of federal funding - highways, arts, education and more.

In the three days of arguments, this was the session where justices seemed most skeptical of the health law's challengers.

Justice Elena Kagan said the money with conditions from the federal government is like a gift certificate.

JUSTICE ELENA KAGAN: If I give you a gift certificate for one store, you can't use it for other stores. But still you can use it for all kinds of different things.

SHAPIRO: Chief Justice John Roberts suggested the states set themselves up for this.

(SOUNDBITE OF SUPREME COURT HEARING)

ROBERTS: They tied the strings. They shouldn't be surprised that the federal government isn't going to start pulling them.